STATE OF NEW YORK, PETITIONER V. UNITED STATES OF AMERICA
No. 88-745
In The Supreme Court Of The United States
October Term, 1988
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit
Brief For The United States In Opposition
TABLE OF CONTENTS
Question presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-17a) is reported
at 853 F.2d 124. The opinion of the district court (Pet. App. 1c-7c)
is reported at 668 F. Supp. 339. The district court's earlier order
denying the State of New York's motion to dismiss (Pet. App. 1b) is
unreported.
JURISDICTION
The judgment of the court of appeals was entered on August 2, 1988.
The petition for a writ of certiorari was filed on October 31, 1988.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the Eleventh Amendment bars the United States, in a federal
court action under the Federal Tort Claims Act, from seeking
contribution against the State of New York.
STATEMENT
1. Harold Blauer died in 1953 from drug injections given as part of
a testing program administered by the New York State Psychiatric
Institute (NYSPI); the program itself was part of a secret chemical
warfare experiment conducted at the behest of the United States Army.
Blauer's widow sued petitioner, the State of New York, for her
husband's wrongful death. In 1955, the parties agreed to an $18,000
settlement, which the New York Court of Claims ratified. As part of
the settlement, Blauer's estate executed a release in favor of
petitioner, NYSPI doctors, and the supplier of the drug that had
caused Blauer's death. The United States was not a party to that
action, but it had agreed with petitioner to pay half of the
settlement. Blauer's estate was not aware of that arrangement. Pet.
App. 4a, 15a.
In August 1975, the Secretary of the Army disclosed the Army's role
in Blauer's death. Elizabeth Barrett, Blauer's daughter and the
administratrix of Blauer's estate, then filed three actions under the
Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671-2680, in the
United States District Court for the Southern District of New York
against the United States and a number of individuals for their
negligence in causing her father's death. /1/ Following consolidation
and protracted preliminary litigation, /2/ the district court
ultimately held a trial. On June 4, 1987, the court entered judgment
against the United States in the amount of $702,044. Pet. App. 4a-5a.
2. In May 1986, the United States, under 28 U.S.C. 1345 and Fed. R.
Civ. P. 14, /3/ moved to file a third-party complaint against
petitioner. On June 27, 1986, the district court granted the motion
and severed that action from the underlying FTCA lawsuit. Petitioner
then moved to dismiss the third-party complaint contending, among
other things, that the Eleventh Amendment barred that action. /4/ The
district court deferred consideration of the matter pending the
outcome of the FTCA lawsuit. After entering judgment in that case
against the United States, the district court denied petitioner's
motion to dismiss the third-party complaint insofar as it sought
contribution from petitioner as a joint tortfeasor. Pet. App. 5a-6a,
2c. The district court rejected petitioner's contention that the FTCA
"requires that the United States be treated as if it were a private
party * * * for the purpose of applying the Eleventh Amendment" (Pet.
App. 6c).
3. The court of appeals affirmed. /5/ It recognized that the
Eleventh Amendment does not prohibit the United States from suing a
state in federal court (Pet. App. 6a), and following United States v.
Hawaii, 832 F.2d 1116, 1117 (9th Cir. 1987), held that the United
States could bring a third-party claim for contribution against a
state in an FTCA action naming the United States as defendant (Pet.
App. 9a-10a). Here, New York had provided a right of action against
the state as a joint tortfeasor, but had attempted to limit such
actions to state courts. /6/ The court of appeals concluded that
where New York has consented to liability for contribution, "thus
providing the United States with a valid claim under state law,
neither the eleventh amendment nor any state law bars federal
jurisdiction with respect to such a claim by the United States" (Pet.
App. 13a-14a). /7/ The court reasoned that the state's effort to
defeat federal court jurisdiction failed because the Constitution
vests jurisdiction of suits involving the United States in the federal
courts (see Art. III, Section 2, Cl. 1), and Congress has expressly
provided for federal district court jurisdiction over such suits
brought by the United States (see 28 U.S.C. 1345) (Pet. App. 14a).
The court of appeals further held that the FTCA itself does not
call for a different result. The FTCA defines the standard of
liability when the United States is a defendant; the statute does not
affect the federal government's rights as a plaintiff. As the court
of appeals observed, the United States, although agreeing in the FTCA
to be treated as a private individual defendant under state law, had
not consented to be treated as a private individual in all respects.
For example, the FTCA expressly bars recovery of punitive damages and
prejudgment interest against the United States, and the statute vests
exclusive jurisdiction of tort claims against the United States in the
federal courts. Pet. App. 14a-15a. In light of such exceptions to
the "'private individual' status of the United States under the FTCA,"
the court of appeals declined to "read the FTCA as limiting or
abrogating either the power of the United States that is implicit in
our federal system to maintain, or the jurisdiction of the federal
courts that is vested by Article III of the federal Constitution to
hear and decide, an action against a state in federal court" (Pet.
App. 15a).
ARGUMENT
The decision of the court of appeals is correct. It does not
conflict with any decision of this Court or of any other court of
appeals. Accordingly, review by this Court is not warranted. /8/
1. Petitioner concedes (Pet. 8) that the Eleventh Amendment does
not prohibit the United States from suing a state in federal court.
See, e.g., Arizona v. California, 460 U.S. 605, 614 (1983) ("Nothing
in the Eleventh Amendment 'has ever been seriously supposed to prevent
a State's being sued by the United States.'" (quoting United States v.
Mississippi, 380 U.S. 128, 140 (1965)). Petitioner contends (Pet.
8-9, 12-16), however, that the FTCA essentially calls for a different
result when the United States files a third-party complaint for
contribution against a state in federal court. The Eleventh Amendment
would bar federal court jurisdiction over such an action filed by a
private individual. In petitioner's view, the Eleventh Amendment
similarly prohibits federal court jurisdiction where the United States
files the claim because the federal government, under the FTCA,
"merely stands in the shoes of a private party" (Pet. 10).
2. Petitioner's syllogistic reasoning rests on a faulty premise.
As the court of appeals correctly pointed out (Pet. App. 15a), the
United States has agreed that for purposes of determining its
liability to a claimant, it should be treated as a private person
under state law, but it has not consented to be treated as a private
individual in all respects. Even with respect to questions of
liability, for example, the FTCA expressly bars recovery of punitive
damages and prejudgment interest against the United States, and the
statute vests exclusive jurisdiction of tort claims against the United
States in the federal courts without trial by jury. See 28 U.S.C.
2402, 2674. Thus the FTCA, as a limited waiver of the sovereign
immunity of the United States, defines the substantive law applicable
to tort claims against the federal government, but contrary to
petitioner's suggestion, it simply does not limit the rights of the
United States as a plaintiff pursuing a cause of action in federal
court under 28 U.S.C. 1345 and the applicable rules of civil
procedure. Cf. United States v. California, 655 F.2d 914, 918 (9th
Cir. 1980).
3. Petitioner, relying on Horton v. United States, 622 F.2d 80 (4th
Cir. 1980) (per curiam), and Hill v. United States, 453 F.2d 839 (6th
Cir. 1972), also argues (Pet. 9-11) that the United States, under the
regime of the FTCA, must yield to the state's effort to restrict
contribution actions to state court. That argument fails: Horton and
Hill held only that where the state has not waived its immunity from
tort liability by providing a cause of action, the United States may
not pursue a cause of action for contribution or indemnification in
any court. See 622 F.2d at 81-82 (South Carolina provides no right of
contribution or indemnification among joint tortfeasors); 453 F.2d at
842 (in absence of common liability between joint tortfeasors,
contribution not available under Tennessee law). In the present case,
petitioner has waived its immunity from suit in tort and has provided
a cause of action for contribution. See page 4 and note 6, supra.
/9/
Petitioner's effort to limit contribution suits against it to state
court may not dictate the United States' choice of forum. The
Constitution (Art. III, Section 2, Cl. 1), together with the
jurisdictional grant of 28 U.S.C. 1345, /10/ enables the United States
to pursue enforcement of its substantive rights in federal court.
Under the Supremacy Clause, those federal provisions trump the state's
effort to restrict the federal government to a state forum. See,
e.g., United States v. Hawaii, 832 F.2d 1116, 1117 (9th Cir. 1987).
Cf. Railway Co. v. Whitton's Administrator, 80 U.S. (13 Wall.) 270
(1871) (state may not preclude the exercise of federal diversity
jurisdiction by statute limiting wrongful death actions to state
court). /11/ For this reason as well, petitioner's argument (Pet.
13-14) that under the FTCA the United States should not be in any
"better position" than a similarly-situated private individual misses
the mark. The Constitution itself requires such different treatment
because Article III, as applied in 28 U.S.C. 1345, confers
jurisdiction on the federal courts over controversies in which the
United States is a party plaintiff and such jurisdiction is not
restricted by the Eleventh Amendment.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
CHARLES FRIED
Solicitor General
JOHN R. BOLTON
Assistant Attorney General
BARBARA L. HERWIG
FREDDI LIPSTEIN
Attorneys
DECEMBER 1988
/1/ Barrett originally had named the State of New York as a
defendant. The district court dismissed petitioner from the lawsuit
on the basis of the Eleventh Amendment. Pet. App. 5a.
Barrett also tried to file a second lawsuit against petitioner in
state court, but the court denied that application without prejudice.
Barrett v. State, 85 Misc. 2d 456, 378 N.Y.S.2d 946 (Ct. Cl. 1976).
/2/ The district court initially had dismissed Barrett's claims as
time-barred under the FTCA, but the court of appeals reversed.
Barrett v. United States, 689 F.2d 324 (2d Cir. 1982), cert. denied,
462 U.S. 1131 (1983). Following the remand, former federal and state
attorneys who were named as defendants moved for dismissal on the
grounds of qualified and absolute immunity. The district court
granted the motion of David Marcus, the former Assistant Attorney
General of the State of New York, but denied the motions of the former
federal attorneys. The court of appeals affirmed those rulings.
Barrett v. United States, 798 F.2d 565 (2d Cir. 1986). Eventually,
the district court dismissed for lack of personal jurisdiction the
claims against the former federal attorneys and judgment was entered
in favor of the individual defendants who proceeded to trial. See
Barrett v. United States, 660 F. Supp. 1291 (S.D.N.Y. 1987).
/3/ Section 1345 of Title 28 provides:
Except as otherwise provided by Act of Congress, the district
courts shall have original jurisdiction of all civil actions,
suits or proceedings commenced by the United States, or by any
agency or officer thereof expressly authorized to sue by Act of
Congress.
/4/ Petitioner also argued that the third-party complaint should be
dismissed on the grounds that the 1955 release barred any action for
contribution, that the prior state court judgments precluded the
United States' claim, and that the complaint itself failed to state a
claim for relief. The district court denied those contentions as well
(Pet. App. 2c-5c), and the court of appeals declined to exercise
"pendent appellate jurisdiction" over those issues (Pet. App. 17a).
Petitioner does not challenge that aspect of the court of appeals'
judgment.
/5/ The United States had urged the court of appeals to dismiss
petitioner's interlocutory appeal because the Eleventh Amendment claim
was frivolous (Pet. App. 3a; Gov't Br. 20). The court of appeals,
however, accepted jurisdiction over the appeal under 28 U.S.C. 1291
"because the district court's denial of (petitioner's) motion on
eleventh amendment immunity grounds constituted a reviewable
collateral order" (Pet. App. 3a (citing Minotti v. Lensink, 798 F.2d
607, 608 (2d Cir. 1986, cert. denied, No. 86-6289 (June 1, 1987))).
/6/ See N.Y. Ct. Cl. Act Section 8 (McKinney 1963) (assuming
liability in tort); Bay Ridge Air Rights, Inc. v. State, 44 N.Y.2d
49, 404 N.Y.S.2d 73, 375 N.E.2d 29 (1978) (recognizing right of
contribution against the state).
/7/ Petitioner relied on cases such as Horton v. United States, 622
F.2d 80 (4th Cir. 1980) (per curiam), and Hill v. United States, 453
F.2d 839 (6th Cir. 1972). The court of appeals distinguished those
cases on the ground that the relevant state law at issue, unlike New
York law, "did not provide a basis for recovery by the United States
against the pertinent state/third-party defendant in any court" (Pet.
App. 10a (footnote omitted)).
/8/ The court of appeals' resolution of the jurisdictional issue,
namely, that the denial of the state's Eleventh Amendment claim is an
immediately appealable collateral order, does conflict with the First
Circuit's holding in Libby v. Marshall, 833 F.2d 402, 406 (1987)
(Eleventh Amendment claim, intended primarily to protect the state's
treasury rather than prevent the "indignity of (the state's) being
'haled into court,'" not immediately appealable). Petitioner has not
presented this issue for review, see Rule 21.1(a) of the Rules of this
Court, and in light of the court of appeals' proper disposition on the
merits of the Eleventh Amendment question that petitioner does present
-- a disposition affirming the decision of the district court -- there
is no need for the Court to consider that separate jurisdictional
issue now. Moreover, the uncertainty surrounding the court of
appeals' jurisdiction over this interlocutory appeal is another reason
against review at this time. See Nixon v. Fitzgerald, 457 U.S. 731,
741-743 (1982).
/9/ Petitioner attempts to analogize this case to United States v.
Illinois, 454 F.2d 297 (7th Cir. 1971), which allowed the United
States to make a third-party claim for indemnification against the
State of Illinois even though state law authorized no such claim (Pet.
11-12). The analogy is inapt because the court of appeals here looked
to state law as the source of the government's claim for contribution.
Cf. Overseas Nat'l Airways, Inc. v. United States, 766 F.2d 97, 102
(2d Cir. 1985) (suggesting, in light of United States v. Yellow Cab
Co., 340 U.S. 543 (1951), that "state law generally governs claims of
the United States for contribution"). Thus, this case does not
present the Court with the question whether the United States may have
a right of contribution independent of state law.
/10/ We have found only one reported decision holding that the
United States could not file a third-party claim against a state
because such a claim was not an action "commenced by the United
States" within the meaning of 28 U.S.C. 1345. Parks v. United States,
241 F.Supp. 297, 299-300 (N.D.N.Y. 1965). No other court has followed
that holding. See, e.g., United States v. Hawaii, 832 F.2d 1116, 1117
(9th Cir. 1987); United States v. Illinois, 454 F.2d 297, 301 & n.3
(7th Cir. 1971), cert. denied, 406 U.S. 918 (1972); Williams v.
United States, 42 F.R.D. 609, 611-612 (S.D.N.Y. 1967). Indeed, the
court that decided Parks no longer adheres to that case's ill-fated
interpretation of Section 1345. Andrulonis v. United States, 96
F.R.D. 43, 44 (N.D.N.Y. 1982).
/11/ Decisions like Smith v. Reeves, 178 U.S. 436 (1900), are not
to the contrary. Those decisions simply permit a state to limit
private actions against it to its own courts and at the same time to
retain its Eleventh Amendment immunity -- an immunity that has no
application in a suit against a state by the United States.